R. v. Polashek

R. v. Polashek Collection Decisions of the Court of Appeal Date 1999-04-07 Docket numbers C28667 Judges Morden, John Wilson; Austin, Allan McNiece; Rosenberg, Marc Subject Criminal Decision Content DATE: 19990407 DOCKET: C28667 COURT OF APPEAL FOR ONTARIO MORDEN A.C.J.O., AUSTIN and ROSENBERG JJ.A. BETWEEN: ) Alan N. Young and ) Richard Litkowski, HER MAJESTY THE QUEEN ) for the appellant ) Respondent ) ) - and - ) D. D. Graham Reynolds, Q.C., ) for the respondent PETER KORNEL POLASHEK ) ) Appellant ) ) Heard: February 18 and 19, ) 1999 ROSENBERG J.A.: [1] This appeal from conviction for possession of narcotics for the purpose of trafficking and possession of L.S.D. raises an issue respecting the application of a doctrine referred to in the United States as the “plain smell doctrine”. The appellant argues, in short, that a police officer had no lawful basis for searching his person and his motor vehicle based on the smell of marijuana emanating from the vehicle. Accordingly, it is argued that the appellant was subjected to an unreasonable search and seizure in violation of s. 8 of the Charter of Rights and Freedoms. The appellant also raises an issue concerning his right to counsel under s. 10(b) of the Charter. Finally, the appellant appeals against the sentence of five months imprisonment imposed by the trial judge. For the reasons that follow, I would allow the appeal from conviction and order a new trial by reason of the violation of the appellant’s rights under s. 10(b) of the Charter. THE FACTS [2] On July 5, 1996, at about 1:00 a.m., the appellant was stopped by Constable Ross of the Peel Region Police, for a Highway Traffic Act violation. It is conceded that this stop was lawful. Constable Ross had a 20 to 30 second conversation with the appellant while the appellant was in the vehicle. In the course of this conversation, Ross detected a “strong odour” of marijuana emanating from the vehicle. Ross, however, saw no smoke and could not tell whether the odour was of burnt or unburned marijuana. He told the appellant that he smelled marijuana. The appellant looked to his right and then over both shoulders to the rear of the vehicle and said, “No, you don’t.” Based on the smell, the appellant’s response to the question, the area of Mississauga where he stopped the appellant, and the time of night, the officer believed that he had grounds for arresting the appellant for possession of narcotics. [3] Constable Ross asked the appellant to leave the vehicle and subjected him to a cursory search. In the right front pocket of the appellant’s shorts, the officer found a black leather key purse. In the purse were three individually wrapped pieces of a “dark tar like substance”. The officer believed this substance to be cannabis resin. He then placed the appellant under arrest for possession of marijuana and continued the search and found over $4,000 in cash in the appellant’s pockets. The appellant was handcuffed and placed in the cruiser. [4] With the assistance of another officer who had arrived on the scene, Constable Ross searched the vehicle. Constable Ross found a registration permit in the glove compartment. This permit indicated that the vehicle was owned by someone other than the appellant. [5] In the trunk, the assisting officer found shoeboxes containing wrapped bags of marijuana, a scale and rolling tobacco. She also found a small film container that contained a small amount of L.S.D. At this time, the appellant was placed under arrest for possession of a narcotic for the purpose of trafficking. Constable Ross for the first time informed the appellant of his rights under s. 10(b) of the Charter. This was some 13 minutes after the initial arrest. The appellant stated that he understood his rights and wished to reserve his right to speak to a lawyer until later. Ross asked the appellant if he wanted tell him about the “dope”. The appellant replied, “What can I say? You caught me; I’m busted.” [6] The appellant did not testify either on the voir dire to determine the admissibility of the evidence or on the trial proper. THE TRIAL JUDGE’S REASONS ON THE CHARTER MOTIONS [7] The trial judge reviewed the evidence concerning the grounds for the initial arrest for possession of marijuana and held that the officer had both subjective and objective reasonable grounds for arresting the appellant. Since the officer had proper grounds for the arrest, he was entitled to conduct a search of the appellant before placing him under arrest. The officer was then entitled to search the vehicle, including the trunk, as an incident to the arrest and without a warrant, notwithstanding there were no exigent circumstances. Accordingly, the trial judge held that the appellant’s rights under s. 8 of the Charter were not infringed. In the alternative, even if the officer did not have reasonable and probable grounds, the trial judge held that there was authority (R. v. Simpson (1993), 12 O.R. (3d) 182 (C.A.)) to permit the officer to perform a “quick pocket search” based on articulable cause. In any event, even if there were a violation of s. 8, the trial judge would not have excluded the evidence under s. 24(2) of the Charter. In the course of his reasons, the trial judge stated that he had “declined to follow the so called ‘plain smell’ doctrine favoured in some U.S. authorities, which requires the officer to be qualified as an expert in marijuana odour detection.” [8] The trial judge also held that police did not infringe the appellant’s rights under s. 10(b) of the Charter. He held that the police were not required to suspend the search of the appellant to provide him with an opportunity to retain and instruct counsel. The trial judge did not expressly deal with the argument made by Mr. Young on the appeal that the 13 minute delay in informing the appellant of his rights to counsel was itself a violation of s. 10(b). THE TRIAL JUDGE’S REASONS FOR CONVICTION [9] The trial judge was satisfied that the Crown had proved that the appellant was in possession of the narcotics and drugs found in the trunk of the vehicle and that his possession was for the purpose of trafficking. The trial judge stated that he reached this conclusion even without the statement made by the appellant after he was advised of his rights to counsel. ANALYSIS 1) The initial search of the person [10] The search of the appellant’s person and his vehicle were conducted without a warrant. The burden was therefore on the Crown to establish that the search was reasonable: R. v. Collins, [1987] 1 S.C.R. 26. The primary position of the Crown was that Constable Ross had reasonable and probable grounds to arrest the appellant and accordingly, had the power to search the appellant and his vehicle, without a warrant, as an incident of that arrest. [11] Mr. Young, for the appellant, summarized his position on this appeal by reference to a decision of the Court of Appeal of Wisconsin in State v. Secrist, 582 N.W.2d 37 at 39-40 (Wis. App. 1998): True, the marijuana odor gave the officer reason to believe that a crime had been committed. But he did not have reason to believe that the crime had just been committed or that Secrist had committed it. Unlike in Mitchell [State v. Mitchell, 482 N.W. 2d 364 (1992)], where the lingering smoke in the vehicle indicated that the marijuana had been smoked quite recently, here there was no indication as to when the marijuana had been smoked or by whom. The smell of marijuana lingers, and thus it could have been smoked five minutes ago or several hours ago. See Schoendaller, 578 P.2d at 734 (noting officer's testimony that "mere odor of marijuana might linger in an automobile for more than a day"). In Mitchell, the presence of smoke indicated that either the driver, the passenger or both were smoking marijuana. Here, the lone odor only suggests that someone had been smoking marijuana. There was no indication as to when the marijuana had been smoked or by whom. While we recognize that police officers should not be unduly restrained in their duty to investigate crime and apprehend criminals, the mere odor of marijuana coming from a car with a sole occupant is not enough to establish probable cause to arrest. Here, the officer had only the suspicion that it was Secrist who had been smoking marijuana. This mere suspicion is not sufficient for probable cause to arrest. Because the evidence relied upon for conviction was the fruit of a search subsequent to an unlawful arrest, we reverse Secrist's conviction. [Emphasis added.] [12] In short, the appellant argues that the presence in a vehicle of the odour of marijuana alone shows only that at some time someone smoked marijuana in that vehicle. It does not provide reasonable grounds to believe that the present occupant of the vehicle was in present possession of marijuana. Thus, it is argued, there are no grounds for an arrest or a search based solely on the officer’s perception of marijuana odour. [13] I agree, in part, with the appellant’s position. Had Constable Ross based his arrest of the appellant solely on the presence of the odour I would have held that there were not reasonable and probable grounds to make the arrest. Given Constable Ross’ admission that he could not from the odour alone determine whether the marijuana had been smoked recently or even if he was detecting the smell of smoked marijuana, the presence of odour alone did not provide reasonable grounds to believe that the occupant was committing an offence. The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory and thus largely incapable of objective verification. A smell will often leave no trace. As Doherty J.A. observed in R. v. Simpson at p. 202 “subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee’s sex, colour, age, ethnic origin or sexual orientation.” [14] On the other hand, I would not go so far as was urged by the appellant that the presence of the smell of marijuana can never provide the requisite reasonable and probable grounds for an arrest. The circumstances under which the olfactory observation was made will determine the matter. It may be that some officers through experience or training can convince the trial judge that they possesses sufficient expertise that their opinion of present possession can be relied upon. Even in this case, the Crown adduced sufficient evidence from which the trial judge could reasonably conclude that Constable Ross accurately detected the odour of marijuana rather than some other substance. [15] However, Constable Ross did not make his arrest solely on the basis of the odour of marijuana. He testified that a combination of circumstances gave him the grounds to make the arrest. He testified as follows: Q. And on the night in question, can you comment on the intensity of the odour? A. That it was a strong odour. Q. At that particular point in time, sir, did you form any opinion? A. Yes, that there was narcotics inside that vehicle. Q. At that particular point in time, sir, did you believe you had grounds to arrest the accused? A. Yes, I did. Q. For what offence? A. For possession of a narcotic. Q. And I want you to explain to His Honour exactly what grounds you had to arrest him at that point in time? A. Apart from the smell, I had also inquired or I had made a statement to the driver of the car. Q. Yes. A. And his response to that just confirmed in my own mind that that was the case. Q. Perhaps we can get into that. What did you say to the accused at that point in time, sir? A. I advised him that I smelled marihuana. Q. And can you advise His Honour of the response? A. Yes. He was very calm; he looked, first of all, to his right, he looked all around the back of his car and then to his left, over both shoulders throughout, the inside of the car. And he very calmly said, "No, you don't." Q. Now, you indicated that that was one possible or one basis for your belief that you could have arrested him, correct? A. That's correct, yes. Q. What were the other bases, sir? A. Well, there was the marihuana or the smell of marihuana, along with that statement, in addition to the time and the location in being involved in Malton at that time I guess. Q. And you indicate time and location in Malton, I'd like you to explain that to the Court. What was it about the time and the location in Malton? A. Malton is a fairly small area that is … the use of drugs is fairly predominant for such a small area – in Mississauga anyway. Q. You indicated that you had worked in that area for some time? A. That's correct. Q. Had you effected prior to this date any other seizures of marihuana involving motor vehicles in the Malton area? A. Yes, I have. Q. Can you indicate to the Court a ball park figure as to how many times you've seized marihuana in that context before – specifically in the Malton area? A. In Malton, between 40 and 50 times. [16] After reviewing the evidence, the trial judge found that the officer had reasonable and probable grounds to arrest the appellant for possession of marijuana. Thus he held, in part, as follows: The officer must subjectively have reasonable and probable grounds on which to base an arrest, and those grounds must be justifiable from an objective point of view. As indicated, I conclude that the officer had reasonable and probable grounds to arrest the accused for the possession of a narcotic upon smelling the strong odour of marijuana inside the vehicle. [17] The standard of review of a trial judge’s finding of reasonable and probable grounds is set out by Sopinka J. in R. v. Feeney, [1997] 2 S.C.R. 13 at 37-38: The finding by a trial judge of whether, objectively speaking, reasonable and probable grounds for arrest existed clearly has a significant factual element and thus is owed some deference by an appellate court. In the present case, in arriving at his conclusion that objective grounds for arrest existed, in my view the trial judge committed two errors in principle that invite review of his finding. First, he considered factors that are not relevant to the question of reasonable and probable grounds. … Even if the trial judge did not err in considering the need to preserve evidence, in my view the trial judge erred in failing to appreciate the evidence of the officer in charge at the scene of the trailer. The trial judge noted that Sgt. Madrigga testified that he did not think he had sufficient grounds to arrest until he observed the blood on the appellant, but did not advert to this evidence in concluding that reasonable and probable grounds to arrest existed prior to the entry into the trailer. In order to conclude that, objectively speaking, reasonable and probable grounds for arrest existed, one must conclude that the officer on the scene was unreasonable in reaching a different conclusion. The trial judge, however, did not explain his dismissal of the officer's evidence in this respect. In my view, such a failure to clarify the basis for his finding that the objective test was satisfied constituted an error of law. [Emphasis added.] [18] Thus, absent an error in principle, an appellate court is not entitled to interfere with the trial judge’s finding of reasonable grounds, unless that finding is unreasonable. If the trial judge’s reasons could be interpreted as finding reasonable and probable grounds solely on the basis of the odour of marijuana I would consider this an error in principle. However, as the excerpted passages from the evidence show, the officer did not rely solely upon the smell of marijuana and it would have been unreasonable for the trial judge to ignore that evidence in reaching his conclusion on both the objective and subjective grounds. [19] Further, I am not satisfied that, based on this record, the finding of reasonable grounds is unreasonable. I recognize that this is a close case. There was no cloud of smoke attending the smell. The officer did not observe any object in plain view in the car that would support the present possession of marijuana. The evidence does not disclose the extent of the officer’s experience in making arrests for marijuana offences although there is an indication of his participation in many such arrests. However, in R. v. Golub (1997), 34 O.R. (3d) 743 at 750 (C.A.), Doherty J.A. held that the test for finding reasonable grounds for arrest is not as exacting as it might be in other situations where reasonable grounds are required, such as in considering the validity of a search warrant: Mr. Harris' reliance on the search warrant cases is misplaced. Both a justice and an arresting officer must assess the reasonableness of the information available to them before acting. It does not follow, however, that information which would not meet the reasonableness standard on an application for a search warrant will also fail to meet that standard in the context of an arrest. In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant. [Emphasis added.] [20] As Cory J. pointed out in R. v. Storrey, [1990] 1 S.C.R. 241 at 250-51 the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. “On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest.” [21] In the circumstances, I would not interfere with the trial judge’s conclusion that the officer had the requisite grounds for an arrest. The officer was, therefore, entitled to search the appellant as an incident of a lawful arrest. In R. v. Debot (1986), 30 C.C.C. (3d) 207 at 223 (Ont. C.A.) [affirmed on other grounds, [1989] 2 S.C.R. 1140], Martin J.A. held that where an officer has grounds for a lawful arrest, “the fact that the search preceded the arrest does not prelude it from being a search incident to a valid arrest, where the arrest quickly follows on the search.” Accordingly, the initial search of the appellant, which led to the finding of the cannabis resin, was lawful and reasonable. [22] It follows that it is not necessary to decide whether the trial judge was right in holding that the search of the appellant could be justified on the basis of articulable cause in accordance with the decision of Doherty J.A. in R. v. Simpson. I would, however, make these observations. The existence of articulable cause does not justify all forms of investigation short of arrest. Doherty J.A. made this clear at pp. 203-204: I should not be taken as holding that the presence of an articulable cause renders any detention for investigative purposes a justifiable exercise of a police officer's common law powers. The inquiry into the existence of an articulable cause is only the first step in the determination of whether the detention was justified in the totality of the circumstances and consequently a lawful exercise of the officer's common law powers as described in Waterfield, supra, and approved in Dedman, supra. Without articulable cause, no detention to investigate the detainee for possible criminal activity could be viewed as a proper exercise of the common law power. If articulable cause exists, the detention may or may not be justified. For example, a reasonably based suspicion that a person committed some property- related offence at a distant point in the past, while an articulable cause, would not, standing alone, justify the detention of that person on a public street to question him or her about that offence. On the other hand, a reasonable suspicion that a person had just committed a violent crime and was in flight from the scene of that crime could well justify some detention of that individual in an effort to quickly confirm or refute the suspicion. Similarly, the existence of an articulable cause that justified a brief detention, perhaps to ask the person detained for identification, would not necessarily justify a more intrusive detention complete with physical restraint and a more extensive interrogation. [Emphasis added.] [23] The brief detention for questioning as occurred in Simpson is quite different from the detention and search of the appellant’s pockets in this case. It went beyond a brief pat-down or frisk protective search authorized by cases such as Terry v. Ohio, 392 U.S. 1 (1968) for reasons of officer safety. (See also R. v. Ferris (1998), 126 C.C.C. (3d) 298, leave to appeal refused, [1998] S.C.C.A. No. 424 (Q.L.)). In considering whether a search such as occurred in this case was justified, the court would also have to consider the impact of recent amendments to the Criminal Code. Sections 117.02 and 487.11 authorize warrantless searches of the person in exigent circumstances but generally only based upon reasonable grounds. Section 11(7) of the Controlled Drugs and Substances Act is to a similar effect. As Doherty J.A. noted in Simpson at p. 199: Unless and until Parliament or the legislature acts, the common law and specifically the criteria formulated in Waterfield, supra, must provide the means whereby the courts regulate the police power to detain for investigative purposes. [Emphasis added.] [24] However, it is unnecessary to determine that issue finally in this case, in view of my conclusion with respect to the trial judge’s finding of reasonable and probable grounds. 2) The warrantless search of the vehicle [25] Counsel for the appellant submits that even if the search of the appellant’s person was justified, the officer was required to obtain a warrant to search the trunk of the vehicle. In my view, that argument is foreclosed by the judgment of the Supreme Court of Canada in R. v. Caslake, [1998] 1 S.C.R. 51. In that case, at pp. 66-67, Lamer C.J.C. held as follows: The police arrested the appellant because they believed that he was either buying or selling the nine-pound bag of marijuana which Natural Resource Officer Kamann found. In this case, the appellant was arrested in his car, which had been observed at the place where the marijuana was discovered. Had Constable Boyle searched the car, even hours later, for the purpose of finding evidence which could be used at the appellant's trial on the charge of possessing marijuana for purpose of trafficking, this would have been well within the scope of the search incident to arrest power, as there was clearly sufficient circumstantial evidence to justify a search of the vehicle. However, by his own testimony, this is not why he searched. Rather, the sole reason for the search was to comply with an R.C.M.P. policy requiring that the contents of an impounded car be inventoried. This is not within the bounds of the legitimate purposes of search incident to arrest. [Emphasis added.] [26] In Caslake at p. 65, Lamer C.J.C. also held that for search to be “truly incidental to the arrest”, where the justification for the search is to find evidence, “there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested.” In my view, the search of the trunk of the vehicle fell within the scope of the common law power. The appellant was arrested shortly after being removed from the vehicle that he was driving. A lawful search of his person disclosed a quantity of cannabis resin and a large amount of money. He had been stopped in an area known to the officer for drug trafficking. In those circumstances, there was a reasonable prospect that the officer would find more drugs or narcotics in the vehicle. 3) The s. 10(b) violation [27] The trial judge correctly held that the police were not required to suspend the search incident to arrest to permit the appellant to exercise his right to counsel. However, the trial judge failed to address the delay in advising the appellant of his right to counsel. Mr. Reynolds fairly conceded that the over ten-minute delay in advising the appellant of his right to counsel constituted a violation of s. 10(b) of the Charter. The decision of Lamer J. in Debot v. The Queen, [1989] 2 S.C.R. 1140 at 1146-47 is conclusive on that issue: The right to search incident to arrest derives from the fact of arrest or detention of the person. The right to retain and instruct counsel derives from the arrest or detention, not from the fact of being searched. Therefore, immediately upon detention, the detainee does have the right to be informed of the right to retain and instruct counsel. However, the police are not obligated to suspend the search incident to arrest until the detainee has the opportunity to retain counsel. There are, in my view, exceptions to this general rule. One is where the lawfulness of the search is dependent on the detainee's consent. [Emphasis added.] [28] The decision of the Supreme Court of Canada in R. v. Feeney, supra is to a similar effect. Accordingly, the trial judge erred in law in holding that the appellant’s rights under s. 10(b) of the Charter were not violated. It therefore becomes necessary to consider the admissibility of the evidence found or elicited after the violation. 4) The application of s. 24(2) of the Charter [29] Following the violation of the appellant’s rights, the police found the drugs and other indicia of trafficking in the trunk of the car and the appellant made an inculpatory statement. The items found in the trunk are non-conscriptive evidence, the admission of which would not affect the fairness of the trial. The violation of the appellant’s rights was not serious, a relatively slight delay in informing him of rights in circumstances where he would not have been able to exercise the rights in any event. [30] The one factor favouring exclusion of the evidence is the effect of the exclusion on the repute of the administration of justice. When asked what he was taught about when to read an arrestee the right to counsel, Constable Ross testified that, “We’re not really taught at any particular point in time, it’s just done subsequent to the arrest.” This suggests a serious systemic failure within the police community, given that the decision in Debot was released over six years prior to the arrest in this case. However, balancing the three sets of factors under s. 24(2), I would not exclude the real evidence found in the search of the vehicle. [31] I take a different view of the inculpatory statement. This was conscriptive evidence and its admission would generally tend to render the trial unfair. By not informing the appellant immediately of his right to counsel, the police “in effect compelled the statements, which statements are paradigmatic self- incriminating evidence.” (R. v. Feeney, supra at p. 60.) Having found the statements conscriptive, the next question is whether alternative legal means to obtain the conscriptive evidence existed. In R. v. Bartle, [1994] 3 S.C.R. 173 at 212, Lamer C.J.C. held that the legal burden is on the Crown to establish that the accused would not have acted any differently had his s. 10(b) rights been fully respected. In R. v. Bartle, Lamer C.J.C. gave two reasons for shifting the burden of proof on this issue to the Crown. He phrased the second reason in these terms: Second, in light of the many warnings by this court about the dangers of speculating about what advice might have been given to a detainee by a lawyer had the right to counsel not been infringed (infra, pp. 215 ff.), it is only consistent that uncertainty about what an accused would have done had his or her s. 10(b) rights not been violated be resolved in the accused's favour and that, for the purposes of considering the effect of admission of evidence on trial fairness, courts assume that the incriminating evidence would not have been obtained but for the violation. The state bears the responsibility for the breach of the accused's constitutional rights. If the state subsequently claims that there was no causal link between this breach and the obtaining of the evidence at issue, it is the state that should bear the burden of proving this assertion. [Emphasis added.] [32] The Crown in this case relies upon the fact that when the appellant was finally advised of his right to counsel he waived his right to consult with counsel at that time and answered the officer’s question. In Bartle at p. 213, Lamer C.J.C. pointed out that Of course, once there is positive evidence supporting the inference that an accused person would not have acted any differently had his or her s. 10(b) rights been fully respected, a s. 24(2) applicant who fails to provide evidence that he or she would have acted differently (a matter clearly within his or her particular knowledge) runs the risk that the evidence on the record will be sufficient for the Crown to satisfy its legal burden (the burden of persuasion). [33] However, on this record it is difficult to determine whether the appellant would have waived his right to consult counsel and made the inculpatory statement after the drugs were found if he had been informed of his right to counsel in a timely way. On the one hand, as Mr. Young pointed out in argument, the appellant would have had over ten minutes to consider his position before the drugs were found and might well have made a different choice. On the other hand, the appellant did not testify on the voir dire, and therefore failed to provide any evidence that he would have acted differently. Because of his finding that there was no s. 10(b) violation, the trial judge made no findings of fact on this issue that would assist in determining the trial fairness question. In my view, this question can only be resolved on a new trial. If the trial judge were to find that this evidence would have affected the fairness of the trial, it would have to be excluded. This is particularly the case given the concerns about the effect of the exclusion on the repute of the administration of justice already expressed. 5. No substantial wrong or miscarriage of justice [34] The Crown submits that, even assuming the statement should not have been admitted, this is one of those rare cases where it is possible to apply the proviso in s. 686(1)(b)(iii) of the Criminal Code and dismiss the appeal. Mr. Reynolds points out that the trial judge expressly held that he would have convicted the appellant without the statement. I, of course, accept the trial judge’s finding. However, improper admission of evidence in violation of the Charter engages broader trial fairness concerns. [35] In R. v. Elshaw, [1991] 3 S.C.R. 24 at 46-47, Iacobucci J. expressed serious reservations as to the application of the proviso where the appellate court finds that evidence has been improperly admitted under s. 24(2) of the Charter: I find the Crown's resort to the curative provision of s. 686(1)(b)(iii) somewhat disturbing in a case of this kind. If the evidence in question should have been excluded under s. 24(2) of the Charter because its admission would put the administration of justice into disrepute, then generally its admission was such as to amount to a substantial wrong or miscarriage of justice, thereby putting matters beyond the reach of s. 686(1)(b)(iii), which is available to cure errors of law where no substantial wrong or miscarriage of justice results. Consequently, s. 686(1)(b)(iii) is not available in this case. This is not to say that there may not be other circumstances where the curative provision could apply notwithstanding that evidence should have been excluded under s. 24(2) of the Charter. This argument also comes dangerously close to the reasoning of the Court of Appeal when it concluded that self-incriminating evidence probably would have been obtained in the absence of the s. 10(b) violation. Such speculation is unwarranted, and defeats the purpose of enshrined Charter rights. In any event, had evidence of the self-incriminating statement been excluded, it is entirely possible that the defence strategy would have been different. For example, the appellant might have testified. Moreover, it is arguable that the similar fact evidence of the appellant's previous conviction would not have been admitted had the impugned statement been excluded. It can, therefore, hardly be said that, as submitted by the Crown, the verdict would necessarily have been the same without that evidence. [Emphasis added.] [36] On this record, I cannot say that if the appellant’s statement was improperly admitted no substantial wrong or miscarriage of justice resulted. As in Elshaw, the defence strategy might have been different and the appellant might have testified. DISPOSITION [37] Accordingly, I would allow the appeal, quash the convictions and order a new trial. “M. Rosenberg J.A.” “I agree: J. Morden A.C.J.O.” “I agree: Austin J.A.” RELEASED: April 7, 1998 (JWM)